Bavadra v Native Land Trust Board [1986] FJSC 13; Civil Action 421 of 1986 (11 July 1986)

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION No. 421 of 1986

BETWEEN:

TIMOCI BAVADRA
(representing Tokatoka Werecakaca, Mataqali Elevuka)
Plaintiff

AND:

NATIVE LAND TRUST BOARD
(a body corporate duly constituted under the Native Land Trust Act Cap. 134)
Defendant

Mr. K.R. Bulewa for the Plaintiff
Miss A. Rogan for the Defendant

REASONS FOR THE DECISION

The plaintiff in this action applied for an order under Order 15 rule 13 of the Rules of the Supreme Court that he be given leave to institute a representative action against the defendant on behalf of the Tokatoka Werecakaca, Mataqali Elevuka of Viseisei Village, Vuda. On the 30th June, I refused leave and indicated that I would give my reasons as soon as possible thereafter.

The action was commenced by writ of summons on the 15th May. In the writ the plaintiff is described as representing Tokatoka Werecakaca, Mataqali Elevuka. The endorsement of claim states that the plaintiff claims damages from the defendant "for unauthorised payment of trust funds to the Fiji Development Bank and an order restraining all deductions by the defendant to the Fiji Development Bank of future rental income due to Tokatoka Werecakaca in satisfaction of outstanding debts of the defunct Elevuka Co-operative Society Limited".

In his affidavit in support of the application, Dr. Bavadra says that he is a member of the Tokatoka Werecakaca. He says that this is a landowning unit in the Province of Ba. He exhibits a document dated the 18th July, 1975 signed by persons claiming to be members of the tokatoka appointing him "to represent us on any dispute about our land and etc."

The affidavit goes on to recite that in 1975 the tokatoka formed a co-operative under the Co-operative Societies Act, Cap. 50. The co-operative borrowed money from the Fiji Development Bank for various commercial ventures. On the 29th March, 1985 the Registrar of Co-operatives cancelled the registration of the Society and on the 17th April, 1985 he appointed a custodian under section 41(4) of the Act to take possession of the books and assets of the co-operative.

On the 18th October, 1976 the Tokatoka Werecakaca purported to assign irrevocably to the Fiji Development Bank all sums due to the Turaga ni Mataqali and the Lewe ni Mataqali out of native rents due to the tokatoka. These rents would, in the normal cause of events, be collected by the defendant as the trustee of native land. The assignment was to continue in force as long as ''monies (sic) remain owing and unpaid to the Fiji Development Bank by the Tokatoka Werecakaca and shall not be withdrawn without the prior approval of the said Bank".

On the 16th May, 1985 nine persons claiming to be members of the tokatoka signed a letter to the defendant announcing that at a meeting held on the previous day it was decided to revoke the authority granted in 1976. The Court has not been supplied with information as to the total number of persons who are members of the Tokatoka Werecakaca.

The Court is not informed as to the name of the person who is the present head of the landowning unit or how the unit is to function in accordance with Fijian custom. Section 17 of the Native Lands Act, Cap. 133, clearly indicates^-that each division or subdivision of the people having the customary right to occupy and use native lands has a head.

Order 15 rule 13 applies to proceedings concerning -

(a) the administration of the estate of a deceased person;

(b) property subject to a trust; and

(c) the construction of a written instrument, including a statute.

(a) and (c) above clearly do not apply.

While it can be said that the control of all native land is vested in the defendant and all such land shall be administered by the defendant for the benefit of the Fijian owners under section 4 of the Native Land Trust Act, Cap. 34, I doubt that the present action concerns property subject to a trust within the meaning of rule 13(1). Even if it were to be so regarded, there is nothing in the affidavit which establishes that the conditions set out in rule (2) have been met. That is to say, there is no evidence that the members of the Tokatoka Werecakaca cannot be readily ascertained or found or that it is expedient for this Court to make a representative order.

Individual members of a mataqali or other Fijian landowning unit have no right to institute proceedings in this Court. This was so held in the case of Meli Kaliavu & Others v. Native Land Trust Board 5 FLR 17. That decision was re-affirmed recently in Namisio Dikau v. N.L.T.B. (801/1984, unreported).

While in this suit the plaintiff seeks leave to institute a representative action on behalf of the tokatoka, he nowhere claims the support of the majority of the members. Twenty-four or twenty-five people, including the Liuliu ni Tokatoka signed the authority in favour of the plaintiff on the 18th July, 1975. Nine persons subscribed to a letter dated the 16th May revoking the authority to the defendant to pay moneys to the Fiji Development Bank and it is this authority upon which the plaintiff relies in the present proceedings.

Even if the plaintiff could show that he had the support of the majority of the adult members of the landholding unit this would not necessarily give him or the people he represents the right to sue. That depends on the nature of a Fijian landholding unit.

As I said in the Dikau case (supra) "a mataqali cannot be equated with any institution known and recognised by common law or statute of general application. The composition, function and management of a mataqali and the regulation of the rights of members in relation to each other and to persons and things outside it are governed by a customary law separate from and independent of the general law administered in this Court".

I do not regard this as a satisfactory state of affairs. The Indigenous law of the Fijian people, which is as much a part of their culture as their language, ceremonies and unique way of life has no proper status in the country. This is so, notwithstanding that most of the land is owned by Fijians under a system of customary title.

Section 5 of the Fiji Independence Order 1970 preserves the existing laws of the Colony of Fiji. Those existing laws were defined in section 2(1) of the Order as:

"any Acts of the Parliament of the United Kingdom, Orders of Her Majesty in Council, Ordinances, rules, regulations, orders or other instruments having effect as part of the law of Fiji immediately before the appointed day but does not include an Order revoked by this Order."

None of these laws, with the sole exception of what appears in the Native Lands Act, Cap. 133, section 3, are concerned with Fijian laws or customs. Section 3 does little more than give grudging recognition to the manner in which native lands are held by native Fijians and it provides that "any disputes arising for legal decision in which the question of the tenure of the land amongst native Fijians is relevant all courts of law shall decide such disputes according to such regulations or native custom and usage which shall be ascertained as a matter of fact by the examination of witnesses capable of throwing light thereupon".

The Constitution of Fiji makes no reference to Fijian custom or usage. Section 15 which affords protection to every person in Fiji against discrimination on the grounds of race, place of origin, political opinions, colour or creed contains an exception under 3(d) for "the application of customary law with respect to any matter in the case of persons who, under that law, are subject to that law".

The Interpretation Act, Cap. 7, by section 66 deals with the method of ascertaining the membership of proprietary units. These refer to the proprietary units recognised under the provisions of the Native Lands Act.

While it is possible that there are other statutes and regulations which give a measure of recognition to Fijian custom, I have found none. The result is that except to a very limited extent the laws and usages of the Fijian people have been effectively suppressed and replaced by the received law introduced by the Deed of Cession in 1874 as subsequently modified.

Prior to independence, the system of courts presided over by Fijian magistrates fell into disuse. Although these courts were not specifically empowered to apply Fijian custom it is likely that they would have taken it into account in the course of their deliberations. The demise of these courts has further weakened the bonds of custom and contributed to the present situation.

The Rotuma Act, Cap. 122, section 3(3) by implication gives recognition to the customs and circumstances of the islanders. If this provision has the effect of preserving to some extent the laws and customs of the Rotumans then, as things stand, they are treated more favourably in this respect than other natives of Fiji. The Rotuman Lands Act, Cap. 138, gives explicit recognition to the tenure of land on that island which is in accordance with the law and custom of the Rotumans.

If the plaintiff wishes to pursue this case further he has to establish, within the framework of the common law, that a tokatoka or mataqali has a right to sue and be sued in the courts. It is, as far as the applied law is concerned, an alien institution, which is neither a corporation nor an unincorporated association. The plaintiff and his associates may be permitted to proceed under Order 15 rule 12 if they can establish "a common interest and a common grievance" and if "the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent". I take the view that the establishment of such a premise presents formidable difficulties, unless the plaintiff can show that the constitution, management and function of the Tokatoka Werecakaca are such that it meets that requirement.

Originally the Fijian landowning units used the land exclusively for agriculture to sustain their members. In such a situation they had no need of the law to protect their interests. Territorial disputes would be determined and settled by those in authority by processes understood and accepted by Fijian tradition. The change came when Fijian land became available for lease. To control this process the Native Land Trust Board was established by the legislature in 1940. The Board was granted absolute control over native lands. The Board was given the right to distribute the rents and premiums received in respect of leases or licences of native lands and was entitled to deduct expenses of up to 25% of the moneys collected from the holders of leases and licences. In the early days such revenues were unlikely to be large.

Times have changed. Modern developments have transformed some mataqali into major landlords commanding revenues much greater than those contemplated at the time that the Native Land Trust Board was established.

It is inevitable that disputes may arise between different interests as a result of these developments. Some mataqali may have genuine differences with the Board as the controlling authority and with third parties with whom they come into conflict. No way has yet been devised by which such disputes can be resolved by recourse to the courts, unless procedural difficulties are overcome.

It is the function of judiciary to apply the existing law. The courts may be able by judicious interpretation of existing law to create new remedies. But the judiciary has no power to establish new institutions or to fill in gaps left by legislation which is no longer suitable in new conditions. It is for the legislature to address itself to these problems.

I must apply the law as I find it and leave it to others to repair such deficiencies as may appear in the course of cases such as this. I can only express the hope that the authorities will see the necessity of rescuing from oblivion the laws, customs and usages of the Fijian people and grant to Fijian landowners the right of access to the courts which is enjoyed by the owners of land held under freehold and leasehold.

(F. X. ROONEY)
JUDGE

Suva,
11th July, 1986